United States Cement Company v. Cooper
| Decision Date | 28 April 1909 |
| Docket Number | 21,452 |
| Parties | United States Cement Company v. Cooper |
| Court | Indiana Supreme Court |
Rehearing Denied July 2, 1909.
From Lawrence Circuit Court; James B. Wilson, Judge.
Action by Spencer E. Cooper, by his next friend, against the United States Cement Company. From a judgment on a verdict for plaintiff for $ 500, defendant appeals. Transferred from Appellate Court under § 1394 Burns 1908, cl. 2, Acts 1901, p. 565, § 10.
Reversed.
Elmer E. Stevenson, Henry C. Duncan, Ira C. Batman and W. H Martin, for appellant.
J. E Boruff and R. R. Boruff, for appellee.
The United States Cement Company, defendant below, appealed from a judgment against it to the Appellate Court, where the judgment was reversed, and the cause remanded to the circuit court for a new trial. There was no petition for a rehearing filed in the Appellate Court by the appellee, but the cement company, being dissatisfied with the declarations of law contained in the opinion of the Appellate Court, filed its petition for a rehearing and for a modification of the opinion and mandate. Appellant's petition was overruled, and thereupon, in due season, it filed its application, under clause two of § 1394 Burns 1908, Acts 1901, p. 565, § 10, for a transfer of the case to the Supreme Court, alleging therein that the decision of the Appellate Court is in conflict with certain specified ruling precedents of this court.
Is appellant, within the meaning of the statute, such a "losing party" as entitled it to have the opinion of the Appellate Court reviewed by this court? We think it is. Section 1394, supra, does not say "any party" against whom a judgment has been reversed. The language is "any losing party" who has filed, and had overruled, a petition for a rehearing, may apply for a transfer of the case to the Supreme Court, on the ground that the decision complained of contravenes a ruling precedent of the Supreme Court, or that a new question of law has been presented, and decided incorrectly. It will be observed that the question presented here, by an application to transfer, is not whether the decision of the Appellate Court is right or wrong, but is the statement and application of legal principles therein at variance with the decision of like, or kindred, questions by the Supreme Court. The obvious purpose of the legislature in providing for this class of transfers from the Appellate Court to the Supreme Court was to keep the decisions of the two courts of appeal harmonious and consistent, and thus avoid the confusion that would arise from two incompatible lines of legal interpretation. Barnett v. Bryce Furnace Co. (1901), 157 Ind. 572, 62 N.E. 6; Klein v. Nugent Gravel Co. (1904), 162 Ind. 509, 70 N.E. 801.
It is alleged in the application that the reversal of the judgment by the Appellate Court in favor of appellant was on account of a mere technical error, namely, "misconduct of counsel" for appellee, and that the law of the case, as declared by the court in its ruling upon the demurrers to the complaint, is so erroneously stated, and so firmly established in this particular case, as to make a retrial wholly unavailing to appellant. Assuming these averments to be true, appellant is the real losing party, and, as shown, the only party that felt aggrieved by the decision of the Appellate Court, and the only party that filed a petition for a rehearing of the cause. If it is a fact that the decision of the Appellate Court contravenes ruling precedents of the Supreme Court, a denial of the transfer will unquestionably violate the spirit, if not the letter, of the statute, and leave in full force and effect a decision that is calculated to puzzle and misguide lawyers and trial courts.
The statute is remedial, and a liberal construction should be given to accomplish the purpose of its enactment. The question before us is unlike that presented in Standard Pottery Co. v. Moudy (1905), 164 Ind. 656, 74 N.E. 242. In that case it did not appear that the appellant, in whose favor the judgment was reversed for a new trial, was in any way prejudiced by the decision. He filed a motion to modify the judgment, but filed no petition for a rehearing of the case, which latter step is, under the statute, essential to the right of transfer. We think the application in this case comes within the statute, and the appellant is entitled to a review of the judgment by this court.
This is an action by appellee to recover damages for personal injuries alleged to have been caused by the negligence of appellant. It is shown by answers to interrogatories that the United States Cement Company maintains a plant for the manufacture of cement, and employs, among other devices, what is called a "screw conveyor." The conveyor, which is propelled by steam-power, is about eighty feet long, composed of a cylindrical iron rod, three inches in diameter, resting at each end in a bearing and encircled by steel flanges, four or five inches wide, in spiral form, and, when being operated, is revolved in an iron-lined box, for most part uncovered at the top. The box is about eighteen inches wide, is horizontal in position, rests on the floor level, and is about eighteen inches high. The sides of the box are about four inches above the top of the revolving screw. The box traverses and rests on ten hopper-shaped bins, and the office of the screw is to convey to, and distribute in, the bins crushed stone. Immediately on the west side of the box is a board walk, three or four feet wide, for the use of employes. The plaintiff, a young man of eighteen, was employed to attend to the conveyor, and superintend the proper distribution of the crushed stone delivered in the bins, and his duties required him occasionally to step across the conveyor box. He had been engaged at the place two days, and, while in the act of crossing the conveyor box at a place where it was not covered, stumbled and threw his foot into the box, and was injured by the revolving screw. The box could have been covered without impairing its usefulness, and, for the use of employes in crossing, in fact, was covered, with the exception of a few feet at the point where the plaintiff attempted to cross at the time of his injury.
The complaint is in three paragraphs. The first, for negligence, is grounded upon the common law, and the second and third are based on section nine of the factory act of 1899 (Acts 1899, p. 231, § 8029 Burns 1908). The negligence charged in the first paragraph is: (1) Failure to place a top on the conveyor box; (2) failure to provide a way by which appellee could fully discharge his duties about the bins without crossing over the conveyor box; (3) negligence in placing four electric wires about three feet above, and immediately over, the conveyor box, so that the plaintiff was compelled to stoop when passing over the conveyor box.
A separate demurrer to each paragraph, for insufficiency of facts, was overruled. Trial by jury, and verdict and judgment for appellee for $ 500, with answers to interrogatories. Appellant's motions for judgment on such answers, and for a new trial, were overruled.
It clearly appears from the answers to interrogatories that the verdict rests upon the second and third paragraphs of the complaint, which fact relieves us from a consideration of the first paragraph, since, if it were bad, the overruling of the demurrer to it did not injure the defendant.
A description of the screw conveyor is set forth in the second paragraph, and it is averred that this conveyor revolved rapidly, by means of machinery, in an iron-lined box (which is described), and thus forced forward crushed stone which was delivered in the box by other machinery; that on July 7, 1905, the work of appellee compelled him to pass about and over said screw conveyor, which was uncovered, open and exposed, and without guard or protection, contrary to the laws of Indiana relating to the use of machinery in mills; that said unguarded and unprotected screw conveyor was dangerous to employes of the mill, who were required to work with and about it; that it could have been guarded at small cost, without interference with the proper use thereof; that the plaintiff, while in the line of duty, and doing the work the defendant directed him to do, and while stepping over the conveyor, lost his balance, and in falling his right foot and leg were caught in said conveyor, and torn, lacerated and crushed, all of which happened because of the failure of the defendant to guard said screw conveyor as provided by law.
The third paragraph is like the second, except that it alleges that while plaintiff was stooping to avoid some electric wires, which were a short distance above the conveyor box, his foot became entangled, and he fell, throwing his foot into the conveyor box, where it was caught by the flanges of the screw and injured.
It is the imperative duty of the master of a manufacturing establishment to guard dangerous machinery therein, as specified in § 8029, supra, and a failure to do so is negligence per se. Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 58 L. R. A. 944, 64 N.E. 610; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; M. S. Huey Co. v. Johnston (1905), 164 Ind. 489, 73 N.E. 996; Inland Steel Co. v. Yedinak (1909), ante, 423.
The action proceeds upon the theory that the plaintiff was injured because of the failure of the master to perform a statutory duty, and in such cases the doctrine of assumed risks does not apply. Davis Coal Co. v Polland (1902), 158 Ind. 607, 92 Am. St. 319, 62 N.E. 492; Island Coal Co. v. Swaggerty (1903), 159 Ind. 664, 62 N.E. 1103; Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 76 N.E. 1060; Bessler...
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